Wickersham v. Ford Motor Company
ORDER denying (136) Motion to Alter Judgment; denying (137) Motion for Judgment as a Matter of Law; denying (138) Motion for New Trial in case 9:13-cv-01192-DCN; denying (130) Motion to Alter Judgment; denying (131) Motion for Judgment as a Matter of Law; denying (132) Motion for New Trial in case 9:14-cv-00459-DCN Signed by Honorable David C Norton on August 30, 2017.Associated Cases: 9:13-cv-01192-DCN, 9:14-cv-00459-DCN(rweh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CRYSTAL L WICKERSHAM,
FORD MOTOR COMPANY
CRYSTAL L WICKERSHAM, as Personal
Representative of the Estate of John Harley
FORD MOTOR COMPANY
The following matters are before the court on defendant Ford Motor Company’s
(“Ford”) motion for judgment as a matter of law, ECF No. 131,1 motion for a new trial,
ECF No. 132, and motion to alter the judgment, ECF No. 130. For the following reasons,
the court denies Ford’s motions.
On February 3, 2011, decedent John Harley Wickersham, Jr. (“Wickersham”) was
involved in a single-car accident while driving a 2010 Ford Escape (the “Escape”).
Wickersham suffered numerous permanent injuries from the crash, which produced
continuous, extreme pain. Wickersham committed suicide on July 21, 2012. Plaintiff
All ECF Nos. refer to Case No. 9:14-cv-0459-DCN.
Crystal L. Wickersham (“plaintiff”), acting as the personal representative of
Wickersham’s estate and in her individual capacity, brought a survival action and
wrongful death action against Ford. Plaintiff alleged that Ford was responsible for
Wickersham’s injuries, and eventual suicide, because of a design defect in the Escape’s
restraint system, and sought recovery on theories of negligence, strict liability, and breach
On August 26, 2016, after a ten-day trial, the jury returned a verdict in plaintiff’s
favor, finding that the Escape was defective and that this defect was the cause of
Wickersham’s injuries and eventual suicide. Specifically, the jury found Ford liable
under each of plaintiff’s theories of recovery, and awarded the following damages with
respect to Wickersham’s injuries: (1) $1,250,000 to Wickersham’s estate for
Wickersham’s pain and suffering between the time of the accident and the time of his
death; and (2) $650,000 to plaintiff, in her individual capacity, for loss of consortium
during the same time period. The jury further found that Wickersham suffered an
“uncontrollable impulse to commit suicide” and that Ford’s wrongful conduct was a
proximate cause of that impulse. The jury awarded: (1) $1,375,00 to Wickersham’s
beneficiaries for his wrongful death; and (2) $1,375,000 to plaintiff, in her individual
capacity, for her loss of consortium following Wickersham’s wrongful death. Lastly, the
jury found that Wickersham was at fault in his use of the Escape’s restraint system and
that this fault was a proximate cause of his injuries. Having determined that both Ford
and Wickersham’s actions were proximate causes of Wickersham’s injuries, the jury
attributed 70% of the fault to Ford, and 30% of the fault to Wickersham.
On September 28, 2016, Ford filed the instant motions for judgment as a matter
of law, for a new trial, and to alter the judgment. Plaintiff filed responses to each motion
on November 8, 2016, and Ford replied on December 1, 2016. The motions are now ripe
for the court’s review.
Judgment as a Matter of Law Pursuant to Rule 50(b)
A movant is entitled to a judgment as a matter of law pursuant to Federal Rule of
Civil Procedure 50(b) “if a reasonable jury could only reach one conclusion based on the
evidence or if the verdict in favor of the non-moving party would necessarily be based
upon speculation and conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485,
489 (4th Cir. 2005); see also Persinger v. Norfolk & W. Ry. Co., 920 F.2d 1185, 1189
(4th Cir. 1990) (“[Judgment notwithstanding the verdict] should not be granted unless the
evidence is so clear that reasonable men could reach no other conclusion than the one
suggested by the moving party.”). This standard is satisfied “if the nonmoving party
failed to make a showing on an essential element of his case with respect to which he had
the burden of proof.” Wheatley v. Wicomico Cnty., Md., 390 F.3d 328, 332 (4th Cir.
2004) (quoting Singer v. Dungan, 45 F.3d 823, 827 (4th Cir. 1995))
In evaluating a motion for judgment as a matter of law, “[t]he evidence and all
reasonable inferences from it are assessed in the light most favorable to the non-moving
party, and the credibility of all evidence favoring the non-moving party is assumed.”
Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 160 (4th Cir. 1988); see also Konkel v. Bob
Evans Farms, Inc., 165 F.3d 275, 279 (4th Cir. 1999) (stating that a Rule 50 motion
should be granted “if a district court determines, without weighing the evidence or
considering the credibility of the witnesses, that substantial evidence does not support the
jury’s findings.”). If there is any evidence on which a reasonable jury could return a
verdict in favor of the nonmoving party, judgment as a matter of law should not be
granted. Price, 93 F.3d at 1249. “If reasonable minds could differ, [the court] must
affirm the jury’s verdict.” Pitrolo v. Cnty. of Buncombe, 407 F. App’x 657, 659 (4th Cir.
2011) (citing Dennis v. Columbia Colleton Med. Ctr., 290 F.3d 639, 645 (4th Cir. 2002)).
New Trial Pursuant to Rule 59(a)
A motion for a new trial under Federal Rule of Civil Procedure 59(a) may be
granted “on all or some of the issues . . . to any party . . . for any reason for which a new
trial has heretofore been granted in an action at law in federal court.” This rule allows a
trial court to set aside the verdict and order a new trial only if “(1) the verdict is against
the clear weight of the evidence, or (2) is based upon evidence which is false, or (3) will
result in a miscarriage of justice even though there may be substantial evidence which
would prevent the direction of a verdict.” Atlas Food Sys. & Servs. Inc. v. Crane Nat’l
Vendors, Inc., 99 F.3d 587, 594 (4th Cir. 1996). “[A] Rule 59(a) motion for new trial is a
matter “resting in the sound discretion of the trial judge.” Eberhardt v. Integrated Design
& Constr., Inc., 167 F.3d 861, 869 (4th Cir. 1999).
Alter or Amend Judgment Pursuant to Rule 59(e)
While Rule 59(e) does not supply a standard to guide the court’s exercise of its
power to alter or amend, the Fourth Circuit has recognized that a court may grant a Rule
59(e) motion “only in very narrow circumstances: (1) to accommodate an intervening
change in controlling law, (2) to account for new evidence not available at trial, or (3) to
correct a clear error of law or prevent manifest injustice.” Hill v. Braxton, 277 F.3d 701,
708 (4th Cir. 2002). Whether to alter or amend a judgment under Rule 59(e) is within the
sound discretion of the district court. Bogart v. Chapell, 396 F.3d 548, 555 (4th Cir.
Though Ford’s motions address a number of different aspects of the trial, there is
some overlap. The court begins its analysis with Ford’s motion for judgment as a matter
of law, which addresses the two primary issues presented by this case: (1) whether
plaintiff provided sufficient proof of a defect in the Escape’s restraint system, and (2)
whether Ford can be held liable for Wickersham’s suicide. Following this discussion, the
court will address Ford’s motion for a new trial, which identifies a number of alleged
errors related to these two broad issues at trial. Finally, the court will address Ford’s
motion to alter or amend the complaint, which deals with the somewhat different issue of
whether contributory negligence is a defense to strict liability and breach of warranty
Motion for Judgment as a Matter of Law
Ford’s motion for judgment as a matter of law argues that (1) plaintiff failed to
present sufficient evidence to support a finding of a defect in the Escape’s restraint
system, and (2) Ford cannot be held liable for damages suffered in connection with
Wickersham’s suicide because such liability is not recognized under South Carolina law,
and even if it were, plaintiff did not present sufficient evidence to support a finding of
such liability. The court takes each argument in turn.
Proof of a Defect
Ford’s initial argument centers on the testimony of plaintiff’s design expert, Chris
Caruso (“Caruso”). ECF No. 131 at 4–14. Caruso is a former employee of Delco, a
division of General Motors (“GM”) that manufactures electronic systems for GM
vehicles. T. 2:317–19. Caruso worked on the development of airbag systems at Delco
from 1986 to 2006. T. 2:320. Caruso explained that the Escape’s restraint system is
governed by a restraints control module (“RCM”), which is a computer that decides when
and how to engage different components of the restraint system—i.e., the seatbelt
pretensioners2 and airbags—based on information provided by crash sensors located
throughout the vehicle. T. 2:332–33. The RCM processes this information through an
algorithm that triggers different responses depending on the inputs. T. 2:336.
Importantly, this algorithm needs to be calibrated based on the structural makeup of the
vehicle. T. 2:338. Caruso testified that the Escape’s airbag should not have deployed at
all in the crash that injured Wickersham, and at the very least, it should not have
deployed so late into the crash. T. 2:388, 2:396–99. Caruso opined that this malfunction
was caused by either a defect in the calibration of the algorithm or the design of
algorithm itself. T. 2:389. Specifically, Caruso opined that the algorithm’s calibration
did not sufficiently account for the variation in data that would be provided to the RCM
in real-world crash conditions, and consequently, the algorithm’s trigger thresholds failed
to account for certain scenarios. T. 2:372–73, 2:375. Based on the algorithm’s
performance in the Wickersham crash, and his own experience, Caruso also determined
Seatbelt pretensioners rapidly tighten the seatbelts during an accident in order to
move the occupant into a safe seating position.
that the algorithm “probably” did not utilize a “raised-threshold approach.” T. 2:439.
The raised-threshold approach ensures that whenever the seatbelt pretensioners fire, the
threshold to trigger airbag deployment increases as time goes on. T. 2:360–61. This
approach is used to account for the fact that the seatbelt pretensioners will cause the
occupant to move forward into the airbag deployment zone. Id. If the airbag is deployed
with the occupant in the deployment zone, it is likely to do more harm than good, unless
the crash is especially severe. Id.
Ford contends that Caruso failed to identify any actual defect. In Ford’s view,
Caruso simply “insisted that the airbag should not have deployed, and since there was no
manufacturing defect, the deployment must have been due to the algorithm and
calibration.” ECF No. 131 at 9 (emphasis in original). Ford contends that such testimony
is an impermissible attempt to rely solely on the fact that the product failed to prove the
existence of a defect. Id. at 8. Much of this argument appears to be premised on the fact
that Caruso had no way of reviewing the actual algorithm used in the Escape’s RCM, and
was therefore forced to look to circumstantial evidence of a defect. Id. (arguing that
Caruso “acknowledged that because he did not have access to the proprietary algorithm
from Autoliv, he did not have an opinion that the algorithm was defective and did not
know what the algorithm actually did”).3
It is true that “one cannot draw an inference of a defect from the mere fact a
product failed.” Graves v. CAS Med. Sys., Inc., 735 S.E.2d 650, 658 (S.C. 2012).
However, the court is not convinced that Caruso’s testimony infringed on this rule.
Caruso highlighted various pieces of evidence supporting his defect opinion—namely,
The owner of the algorithm refused to provide it to either plaintiff or Ford.
Ford’s testing data, T. 2:367, 2:385 (noting data indicating that a 19 mile per hour, angled
impact should not cause airbag deployment, and later opining that Wickersham’s crash
was less severe than a 19 mile per hour, angled impact), and the RCM designers’
calibrations, T. 2:372–73 (discussing the tolerances used in the RCM designers’
Even if this evidence were set to the side, Caruso’s opinions derive from his
understanding of how an RCM system can be designed and his assessment of how the
RCM system actually performed in this case. Using such knowledge, Caruso was able to
draw inferences about the algorithm’s design. The practice of drawing inferences about a
product’s design from the way it performed is not the same as “draw[ing] an inference of
a defect from the mere fact a product failed.” Graves, 735 S.E.2d at 658. In Sunvillas
Homeowners Ass’n, Inc. v. Square D Co., for example, the court recognized the rule Ford
attempts to enforce here, and applied it where the plaintiff’s expert simply opined that
there “was some defect in the product,” but “could not identify the defect.” 391 S.E.2d
868, 870 (S.C. Ct. App. 1990) (emphasis added). The expert even testified that “[t]here
is no evidence that I have that [the defendant] manufactured it wrong except for the fact
that it didn’t work as intended.” Id. Here, in contrast, Caruso was able to identify two
specific design flaws that could have caused the airbag’s late and unnecessary
deployment—inadequate calibration and the failure to employ a raised-threshold design
To the extent that Ford objects that Caruso cannot say with certainty whether
these defects exist because he has not actually seen the algorithm, it is notable that
Caruso did specifically assert that the 6 percent variation used to calibrate the RCM data
was insufficient. T. 2:372. Moreover, while Caruso could not confirm whether the
algorithm used the raised-threshold approach, he testified that it “probably” did not. T.
2:439. The court sees nothing wrong with this assertion. It seems to be a rather
straightforward use of circumstantial evidence to prove the existence of a defect. There
is no question that this is permitted under South Carolina law. See Graves, 735 S.E.2d at
658 (recognizing that a defect may be proven using circumstantial evidence).
Ford also argues that plaintiff failed to present sufficient evidence of a feasible
alternative design. ECF No. 131 at 9–14. Ford first argues that its corporate
representative, Ram Krishnaswami (“Krishnaswami”), confirmed that the Escape did in
fact utilize Caruso’s raised-threshold alternative approach, and thus, this alternative
should not be considered at all. Id. at 11. But because Krishnaswami did not have access
to the algorithm, his testimony was just as circumstantial as Caruso’s. Krishnaswami
claimed to know that the Escape’s algorithm employed such an approach “based on [his]
experience” working on other projects and his reading of the calibration report. T.
7:1413–14. The fact that two experts reached conflicting conclusions relying on
circumstantial data strikes the court as unremarkable. Certainly, the court cannot find
that Krishmaswami held the only reasonable view of the evidence. Therefore, despite
Krishnaswami’s testimony, there was evidence that the algorithm did not utilize the
raised threshold approach.
Ford also argues that Caruso’s proposed alternatives are unduly speculative and
failed to account for potential adverse consequences of the design. ECF No. 131 at 11–
13. To prove a design defect under South Carolina law, a plaintiff must “point to a
design flaw in the product and show how his alternative design would have prevented the
product from being unreasonably dangerous. This presentation of an alternative design
must include consideration of the costs, safety and functionality associated with the
alternative design.” Branham v. Ford Motor Co., 701 S.E.2d 5, 16 (S.C. 2010). An
alternative design must be more than merely “conceptual.” Holland ex rel. Knox v.
Morbark, Inc., 754 S.E.2d 714, 720 (S.C. Ct. App. 2014).
Here, Caruso testified that he had used both of his alternative designs, the raisedthreshold approach and increased variability-based calibration, in his work at Delco. T.
2:389, 2:401. Such testimony indicates that these approaches were certainly feasible,
since they have been employed by manufacturers in the past. Moreover, Caruso
specifically acknowledged that increasing the variability built into the algorithm’s
calibration might require changes to the actual algorithm’s design, T. 2:394, and stated
that: (1) he had been able to design algorithms that could be calibrated to account for
such variability in the past, and (2) there was no reason to believe the same thing could
not be done for the Escape. T. 2:401. Caruso also specifically testified that his Delco
designs prevent the types of injuries that occurred in this case. T. 2:361. Ford argues that
Caruso’s past experience is insufficient to support a finding of feasibility in this case
because he left Delco in 2006, and therefore had no way of knowing what designs other
manufacturers were using when the Escape was manufactured in 2010. ECF No. 131 at
12. The court does not find that this 4-year4 gap in time is enough to render Caruso
unqualified to testify about the practices of other manufacturers in 2010. Caruso actually
testified that some of the design elements he developed are used in today’s GM vehicles.
Caruso testified that he left Delco in August, 2006. T. 2:410. The 2010 Ford
Escape was presumably developed in 2009, so the elapsed time between Caruso’s
departure from Delphi and the design of the Escape’s algorithm may be closer to 3 years.
T. 2:324. Given this evidence that other manufacturers utilized Caruso’s alternative
designs, the court finds that there was evidence that the designs were feasible in light of
costs, safety, and functionality.
Therefore, the court finds that plaintiff presented sufficient evidence of a design
Ford next argues that it cannot be held liable for Wickersham’s suicide. The bulk
of Ford’s argument consists of its disagreement with the court’s legal determination that a
defendant may be held liable for a decedent’s wrongful death by suicide when the
decedent suffered an uncontrollable impulse that was proximately caused by the
defendant’s wrongful conduct. ECF No. 131 at 14–24. Because these arguments do not
appear to be any different than the arguments Ford raised at the summary judgment stage,
it is sufficient to simply refer to the court’s order denying summary judgment. ECF No.
Ford also argues that, even under the court’s “uncontrollable impulse” standard,
plaintiff failed to present sufficient evidence to support a finding of liability. ECF No.
131 at 23–24. This argument focuses on the testimony of Dr. Donna Schwartz-Maddox
(“Dr. Maddox”), plaintiff’s expert in psychiatry and forensic psychiatry. Id. Dr. Maddox
reviewed Wickersham’s metal and psychiatric history following the accident and
concluded that “[Wickersham’s] suicide was a result of chronic pain and depression, . . .
and that the pain . . . that led to his suicide was directly a product of his car accident.” T.
4:773–74. Ford highlights Dr. Maddox’s admission that Wickersham knew what he was
doing when he committed suicide to argue that he could not have been under an
“uncontrollable impulse.” ECF No. 131 at 24. However, under the uncontrollable
impulse test, it does not matter that the decedent intended the consequences of his actions
because intent does not necessarily constitute “control” within the meaning of the rule.
See Fuller v. Preis, 322 N.E.2d 263, 268 (N.Y. 1974) (explaining that “[i]n tort law, . . .
there is recognition that one may retain the power to intend, to know, and yet to have an
irresistible impulse to act and therefore be incapable of voluntary conduct,” and that “[a]n
irresistible impulse does not necessarily mean a ‘sudden’ impulse”); Tate v. Canonica, 5
Cal. Rptr. 28, 40 (Cal. Dist. Ct. App. 1960) (“It should not make any difference that the
decedent ‘knew what he was doing’. If defendant is to avoid liability, the decedent’s act
must be voluntary, not in that sense but in the sense that he could, in spite of his mental
illness, have decided against suicide and refrained from killing himself.”). Therefore, the
fact that Wickersham knew he what he was doing and implemented a plan to kill himself
does not preclude a finding that he was under an “uncontrollable impulse.”
Ford also highlights Dr. Maddox’s statement that she did not know whether
Wickersham “could totally control” his suicidal impulse, and argues that if Dr. Maddox
was unsure on this point, she could not competently testify as to whether Wickersham’s
impulse was “uncontrollable.” ECF No. 131 at 24–25. This argument is based on the
Q. Did he -- I think you answered this, but did he have the capacity on that
day to control this impulse?
A. No. In my opinion his capacity was severely diminished. Whether he
could totally control it, I don't know, but it was — obviously in my opinion,
it was diminished.
T. 4:832. When read in full, and in the light most favorable to the plaintiff, the court
finds that Dr. Maddox’s equivocation on this point simply reflects the basic fact that she
could never fully confirm the degree to which Wickersham could control his impulse.
This finding is consistent with the answer she offered to a similar question shortly before
the disputed testimony:
Q. On that day, in your opinion, did Mr. Wickersham have the capacity to
resist th[e] impulse [to commit suicide]?
THE WITNESS: In my opinion he did not. It was severely impaired. He
had some capacity -- again, keeping in mind in answering these questions,
I was not there. None of us were there. He’s not alive for us to ask. And
what we do in forensic psychiatry, we go back in time. We look at illnesses.
I know he had had a history of depression. I know that he had a history of
developing suicidal ideation when he was in chronic pain. We know that he
remained in pain. He was trying to explore alternatives to get his pain
treated. He was running out of resources in terms of financial resources to
fund that treatment. We know that very shortly before his suicide, he had
gone with family and abruptly cut a vacation short. We know that he was
decompensating. So the best that we are able to do is to say because of that
pain and some of his depression, that on that day that decision to kill himself
was not the normal judgment he used. It impaired his judgment severely.
T. 4:831–32. Considering all of this testimony together, the court concludes a reasonable
juror could have found that Wickersham’s capacity to resist his suicidal impulse was so
severely impaired that he lacked the ability to control that impulse. Dr. Maddox’s
recognition that she could not conclusively prove Wickersham’s level of control does not
render her opinion insufficient to support the verdict.
Therefore, the court finds that plaintiff presented sufficient evidence for a
reasonable juror to find Ford liable for Wickersham’s wrongful death.
Motion for a New Trial
Ford moves for a new trial, arguing that the court erred in the following ways:
By admitting evidence of the amounts paid to Ford’s experts and
their companies in other cases;
By admitting evidence concerning over one hundred other cases;
By allowing plaintiff to engage in improper, harmful, and unfairly
prejudicial closing arguments;
By allowing Wickersham’s treating physician to offer injury
By allowing plaintiff to offer rebuttal testimony;
By admitting evidence of Wickersham’s suicide;
By instructing the jury that Ford could be held liable for
Wickersham’s suicide; and
By instructing the jury on the aggravation of a pre-existing
The court addresses each argument in turn.
Ford takes issue with the court’s decision to allow plaintiff to elicit testimony
from two of its experts, Jeffrey Pearson (“Pearson”) and Dr. Mike Scott (“Dr. Scott”),
regarding amounts paid by Ford to their companies in other cases dating back to 16 years
before trial. T. 8:1609 (asking Pearson whether his company had been paid $6 million
over the last 10 years for work in litigation from Ford); T. 8:1711 (discussing $30 million
in payments from Ford to Dr. Scott’s company since 1999). Plaintiff contends that such
evidence was relevant to show that the experts were biased, while Ford argues that the
scope of such testimony was entirely irrelevant to any issue in the case. ECF No. 132 at
Evidentiary rulings are committed to the sound discretion of the district court.
Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 345 (4th Cir. 2014). “To be admissible,
evidence must be relevant—a ‘low barrier’ requiring only that evidence be ‘worth
consideration by the jury . . . .’” Id. (quoting United States v. Leftenant, 341 F.3d 338,
346 (4th Cir. 2003)). “Relevant” evidence is defined in the Federal Rules of Evidence as
evidence that “has any tendency to make a fact more or less probable than it would be
without the evidence; and the fact is of consequence in determining the action.” Fed. R.
Evid. 401(a)–(b). Rule 403 provides that the court may “exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing
the issues, misleading the jury, . . . or needlessly presenting cumulative evidence.”
Ford contends that the court should not have admitted evidence of earnings for
work performed by other experts employed by Pearson and Dr. Scott’s firms. ECF No.
132 at 5. As the court explained at trial, it allowed plaintiffs to impeach Pearson and Dr.
Scott using evidence of earnings related to work performed by their firms in other cases
because they were each owners of their respective firms. T. 8:1630 (“If he was an owner
of the firm, he could testify to what the firm billed, because they have an interest in it.”).
The court stands by this ruling. An owner’s interest in his firm would be stronger than an
ordinary employee, and thus, the owner’s bias would be affected more by the overall
relationship between his firm and the client—not just what the client was paying in the
specific case at hand. This reasoning is consistent with the Fifth Circuit’s thinking in
Collins v. Wayne Corp., which held that “[a] showing of a pattern of compensation in
past cases raises an inference of the possibility that the witness has slanted his testimony
in those cases so he would be hired to testify in future cases.” 621 F.2d 777, 784 (5th
Cir. 1980); see also Behler v. Hanlon, 199 F.R.D. 553, 557 (D. Md. 2001) (“[T]he fact
that an expert witness may have a 20 year history of earning significant income testifying
primarily as a witness for defendants, and an ongoing economic relationship with certain
insurance companies, certainly fits within recognized examples of bias/prejudice
impeachment.”). If the focus is on the experts’ interest in their firms’ relationships with
Ford, it does not matter that they were not specifically involved in the prior engagements
because their employees’ work benefits that relationship just as much as their own.
The same basic rationale explains why the court did not limit impeachment
evidence to earnings from this case. Ford highlights the Ash v. Ford decision out of the
Northern District of Mississippi, in which the court limited evidence of expert
compensation to compensation earned in that case. The court notes that this decision was
made from the bench and the underlying rationale was never explained. ECF No. 82-1,
Ash v. Ford Transcript. As outlined above, other courts have allowed evidence of
earnings from previous cases to establish a “pattern of compensation,” Collins, 621 F.2d
at 784, or “an ongoing economic relationship.” Behler v. Hanlon, 199 F.R.D. at 557.
The court follows these decisions and finds that evidence of payments from Ford to
Pearson and Dr. Scott’s firms in other cases was certainly relevant to their bias.5
The next question is whether the probative value of such evidence is substantially
outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid.
403. Ford provides very little argument as to why evidence of amounts earned in other
cases by other experts is prejudicial or otherwise problematic. To the extent Ford
suggests that plaintiff used such information to “inject” evidence of other incidents into
this case without a showing of substantial similarity, the court addresses that argument in
Ford also claims that when the issue was first raised the court limited evidence
of earnings from prior cases to a 10 year period. ECF No. 132 at 6. It is true that the
court recognized that there “probably ought to be some kind of limitation and initially set
that limitation at 10 years. T 8:1635. However, after plaintiff’s counsel informed the
court that he was not able to break down the information he had into the last 10 years, the
court decided to allow plaintiff to bring everything in, reasoning that defendant should
have sought to a time limitation sooner.
part III.B.2. Once this argument is set aside, there is little to support Ford’s argument
that the admission of such evidence violated Rule 403.
Therefore, the court finds that it did not err in allowing the plaintiff to introduce
evidence regarding amounts paid to Ford’s experts and their companies in other cases.
Other Incident Evidence
In cross-examining Ford’s witnesses, plaintiff discussed their testimony on behalf
of Ford in other cases involving defective airbag allegations. For instance, plaintiff
pointed out that Pearson had previously testified on Ford’s behalf that occupants were out
of position. T. 8:1601–07. Plaintiff also highlighted prior testimony from Dr. Scott,
noting that he also frequently testified that the occupant was out of position.6 T. 8:1703–
08. Ford argues that plaintiff’s discussion of Pearson and Dr. Scott’s testimony in prior
cases improperly suggested that the Escape was defective by highlighting the existence of
other lawsuits without establishing that the incidents underlying those lawsuits were
substantially similar to the incident at issue in this case. ECF No. 132 at 12.
When a proponent seeks to introduce evidence of prior incidents to prove a defect,
the proponent must establish that such incidents were “‘substantially similar’ to the
accident at issue.” Mirchandani v. Home Depot U.S.A., Inc., 470 F. Supp. 2d 579, 583
(D. Md. 2007) (“Where a party seeks to introduce evidence of other accidents, he ‘must
Ford also highlights certain testimony of Krishnaswami, where plaintiff asked,
Even when you knew that those airbags were causing injuries when
plaintiffs  injured us[ing] those vehicles were complaining about those
injuries, Ford Motor Company was hiring Mr. Scott -- Dr. Scott and Mr.
Pearson to come in and testify that those folks were out of position?
T. 7:1419. However, when read in context, it is clear that this question related to
incidents involving over-powered, pre-1997 airbags. Id. There was no risk that the jury
would regard such incidents as bearing on the defect issue in this case.
present a factual foundation for the court to determine that the other accidents were
substantially similar to the accident at issue.’” (quoting Buckman v. Bombardier Corp.,
893 F. Supp. 547, 552 (E.D.N.C. 1995))). Ford argues that this “substantial similarity”
requirement extends to situations when the evidence relating to prior incidents is not
offered to prove the existence of a defect. ECF No. 152 at 5. However, Ford makes this
argument under South Carolina law, not federal law—which governs the evidentiary
issues in this case.
The federal case law on the issue indicates that the substantial similarity
requirement is tied to the purpose for which the evidence is admitted. See Hershberger v.
Ethicon Endo-Surgery, Inc., 2012 WL 1113955, at *2 (S.D.W. Va. Mar. 30, 2012)
(recognizing that “evidence of similar incidents may be relevant as direct proof of
negligence, a design defect, notice of a defect, or causation,” but holding that such
evidence should not be admitted unless the court finds that “the other incidents were
‘substantially similar’ to the allegations at issue”); Musick v. Dorel Juvenile Grp., Inc.,
2011 WL 5110404, at *1 (W.D. Va. Oct. 22, 2011) (“When prior incidents or injuries are
admitted to prove notice, the required similarity of the prior accidents is more relaxed
than when prior incidents are admitted to prove negligence.”). Here, Pearson and Dr.
Scott’s prior opinions were offered to prove bias by illustrating a pattern of consistently
offering favorable opinions in Ford cases. Indeed, the court is not certain whether
plaintiff’s questioning on this issue should be considered “prior incident” evidence at all.
The comparison that was relevant was the content of the witness’s prior opinions, not the
nature of the incidents underlying the litigation in which those opinions were offered. In
this regard, it would have been to plaintiff’s benefit to show that incidents underlying
Pearson and Dr. Scott’s previous testimony were not similar to the incident in this case.
The ultimate point of the exercise was to suggest that Pearson and Dr. Scott’s conclusions
were not a reflection of their genuine analysis, but instead, a reflection of their
relationship with Ford or their bias against plaintiffs in airbag cases. Showing that the
actual incidents varied, while Pearson and Dr. Scott’s testimony remained the same,
would only strengthen this argument.
Nevertheless, the court recognizes that plaintiff did elicit testimony that
referenced other airbag cases. Courts treat similar incident evidence as “highly
prejudicial” under Rule 403. Hershberger, 2012 WL 1113955, at *2; Blevins v. New
Holland N. Am., Inc., 128 F. Supp. 2d 952, 961 (W.D. Va. 2001) (“Proof of prior
accidents is not easily admitted into evidence because it often results in unfair prejudice,
consumption of time, and distraction of the jury to collateral matters.”). Thus, it is fair to
worry that such testimony might have been used for a purpose other than impeachment.
However, when the testimony is read in full, it is clear that the focus was on the experts’
biases, not the Escape at issue in this case. Plaintiff’s counsel repeatedly asked Pearson
and Dr. Scott to recall the testimony they offered. Plaintiff’s counsel did not spend a
great deal of time recounting the facts of each case, much less discuss the particular
nature of the defect alleged in each case. T. 8:1601–07, 8:1703–08. Given the nature of
the testimony, the court concludes that the risk of the jury prejudicially misapprehending
the point of the questioning was minimal.
Therefore, the court finds that it was not error to allow plaintiff to question Ford’s
witness on their testimony in prior engagements.
Plaintiff’s Closing Argument
Ford next argues that plaintiff’s closing argument was improper, harmful, and
unfairly prejudicial because it relied on the aforementioned evidence of Ford’s experts
earnings and testimony in other cases to suggest that Ford’s experts were not offering
genuine opinions, and were essentially lying to the jury. ECF No. 132 at 14. Plaintiff
argues that it was not error to allow her closing arguments to draw such inferences, and in
any event, Ford failed to object when the closing arguments were made. ECF No. 147 at
As an initial matter, for the reasons discussed in the preceding sections, it was not
error to allow plaintiff to argue that Ford’s experts were not credible based on their longstanding, economic ties to Ford, and their history of offering the same basic opinion in
other airbag-related litigation. While it is true that plaintiff’s counsel may have used
somewhat colorful language, the entire purpose of impeachment is to show that, for one
reason or another, the opponent’s witness should not be believed. If it is not “unfairly
prejudicial” to present evidence of expert compensation, the court fails to see why it
would be unacceptable to present the type of arguments contained in plaintiff’s closing
argument—both methods suggest that the expert’s pecuniary interests have overcome
their interest in the truth.
In any event, supposing plaintiff’s closing argument was improper, Ford must still
overcome its failure to object. “A motion for a new trial should not be granted  where
the moving party has failed to timely object to the alleged impropriety giving rise to the
motion.” Dennis v. Gen. Elec. Corp., 762 F.2d 365, 367 (4th Cir. 1985). “The failure to
object at the proper time will be overlooked on appeal only if exceptional circumstances
exist such as when the error is so obvious or so serious that the public reputation and
integrity of the judicial proceeding is impaired.” Id. Ford never clarifies how it can meet
this standard, and for the reasons outlined above, the court is not convinced that
plaintiff’s closing arguments were even improper. Certainly, the court does not believe
that it erred in such an obvious or serious manner “that the public reputation and integrity
of the  proceeding [was] impaired.” Id.
Therefore, the court finds that plaintiff’s closing arguments do not warrant a new
Dr. Skoner’s Testimony
Ford next argues that the court erred in permitting Dr. Judith Skoner (“Dr.
Skoner”), Wickersham’s treating otolaryngologist, to offer injury causation opinions.
ECF No. 132 at 15–22. Apart from citations to Dr. Skoner’s trial testimony and a brief
discussion of how such testimony was harmful error, Ford’s arguments are nearly
identical to the arguments it advanced in its motion in limine on the same issue. ECF No.
81. The court issued an order explaining its ruling on that motion. ECF No. 129. In
short, the court held that (1) plaintiffs were not required to provide a Rule 26(a)(2)(B)
report disclosing Dr. Skoner’s opinions because those opinions were arrived at through
the ordinary course of Wickersham’s treatment, (2) plaintiff’s failure to provide a
summary of Dr. Skoner’s opinions under Rule 26(a)(2)(C) was substantially justified or
harmless, (3) Dr. Skoner was qualified as an otolaryngologist, and (4) Dr. Skoner reliably
applied principles of otolaryngology in reaching her conclusion that Wickersham’s
injuries were caused by the airbag. Id.
Ford’s basic argument is that Dr. Skoner could not possibly have been qualified to
offer causation opinions, or her opinions could not possibly have been reliable, because
she is an otolaryngologist, not a biomechanical engineer. The court stands by its finding
that Daubert does not require experts to be qualified in any particular field, the question is
whether the expert’s qualifications and methodology can be reliably applied to address
the issue for which testimony is offered. While otolaryngologists may not be relied on to
conduct open-ended investigations into causation under ordinary circumstances, this case
was not ordinary. Here, the universe of possible causes was quite limited, and Dr. Skoner
was able to draw on her knowledge of Wickersham’s injuries to undermine Ford’s theory
that the impact came from the gear shift hitting the side of Wickersham’s face. T. 2:275
(“You could see it on the scan. . . . His -- his upper jaw is behind his lower. . . . it was
pushed back. Again, like it just makes sense. It’s pushed back. Something hit it from
Therefore, the court finds that it did not err in admitting Dr. Skoner’s causation
opinions. To the extent further explanation is necessary, the court refers to its order on
Ford’s motion in limine. ECF No. 129.
Ford next argues that the court erred in permitting plaintiff’s biomechanical and
accident reconstruction expert, Kelly Kennett (“Kennett”), to provide a rebuttal to
Pearson and Dr. Dan Toomey’s (“Dr. Toomey”) testimony. ECF No. 132 at 22–25. Ford
contends that Kennett had ample opportunity to present his critique of Pearson and Dr.
Toomey’s opinions on direct examination, and argues that rebuttal testimony is only
permissible to address “new” facts or evidence that causes unfair surprise. Id. Plaintiff
argues that Kennett’s rebuttal testimony is permissible under Federal Rule of Evidence
611(a). ECF No. 147 at 23.
Ford relies on the Fourth Circuit’s decision in Allen v. Prince George’s Cty., Md.,
which explained that
[o]rdinarily, rebuttal evidence may be introduced only to counter new facts
presented in the defendant’s case in chief. Such new facts might include
“surprise” evidence presented by the defendants. Permissible rebuttal
evidence also includes evidence unavailable earlier through no fault of the
737 F.2d 1299, 1305 (4th Cir. 1984). The Allen court upheld the district court’s refusal
to allow the plaintiffs to introduce new data to support their claims on rebuttal. Id.
(“When the district court rejected the appellants’ statistics including pre-1972 hires, and
accepted the county’s statistics excluding pre-1972 hires, the appellants wanted to
introduce a ‘new’ set of statistics which excluded also employees hired prior to 1972.”).
The court reasoned that this data was available before the rebuttal stage, and therefore,
rebuttal was inappropriate. Id. at 1306 (“Rebuttal was too late for the appellants to come
up with this data. Had they wanted to introduce such statistics, the time to do so was
when they presented their case.”).
Though the Allen case can be read to suggest that rebuttal is limited to “new” or
“surprise” evidence, the court notes that the rationale underlying that decision does not
fully translate to this case. Technically, it is true that Kennett could have outlined his
criticisms of Pearson and Dr. Toomey’s opinions before Pearson and Dr. Toomey even
testified, but Kennett’s rebuttal testimony was not used to establish any of the facts
plaintiff was required to prove her prima facie case. Instead, it was simply used to defend
plaintiff’s case against Pearson and Dr. Toomey’s attacks. The court finds this situation
factually distinguishable from Allen, where the appellants simply sought to introduce
evidence to provide direct support for their claims.
Beyond this factual distinction, Allen is also distinguishable on its procedural
posture. In Allen, the court was affirming the district court’s refusal to allow rebuttal
evidence, not deciding whether it was improper to allow rebuttal. As the Fourth Circuit
later explained in Pugh v. Louisville Ladder, Inc., “the fact that we have previously held
it within a district court’s discretion to limit rebuttal to surprise evidence does not equate
with a requirement that rebuttal must always be limited in such manner.” 361 F. App’x
448, 459 (4th Cir. 2010). In Pugh the court looked to Federal Rule of Evidence 611(a) to
determine whether a district court’s decision to allow rebuttal testimony was in error.
Concededly, the Pugh decision is unpublished, but this court finds its interpretation of the
Allen decision and reliance on Rule 611(a) instructive. For one thing, Rule 611(a)
directly addresses “the mode and order of examining witnesses,” a topic which naturally
encompasses the question of rebuttal testimony. Fed. R. Evid. 611(a) (“The court should
exercise reasonable control over the mode and order of examining witnesses and
presenting evidence.”). Moreover, other district courts have cited to Rule 611(a) in
deciding whether to allow rebuttal testimony. Kartman v. Markle, 2015 WL 3952639, at
*3 (N.D.W. Va. June 29, 2015); United States v. Moore, 2012 WL 4404082, at *1 (W.D.
Va. Sept. 25, 2012), aff’d, 532 F. App’x 336 (4th Cir. 2013). Therefore, the court finds it
appropriate to look to Rule 611(a) to determine the propriety of Kennett’s rebuttal.
Rule 611(a) provides that “the court should exercise reasonable control over the
mode and order of examining witnesses and presenting evidence so as to: (1) make those
procedures effective for determining the truth; (2) avoid wasting time; and (3) protect
witnesses from harassment or undue embarrassment.” When Ford objected to Kennett’s
rebuttal at trial, the court based its ruling on the second factor, finding that it would have
been wasteful to require plaintiff to rebut Ford’s experts before they even testified, given
the risk that such rebuttal may have turned out to be unnecessary. T. 9:1882 (“What it
seems that Ford wants Mr. Crosby to have to do is to present his full theories, and then
rebut Ford’s theories before Ford puts its theories in court, which is, number one, a waste
of time.”). This is reason enough to find that it was not error to allow Kennett’s rebuttal.
An additional reason to avoid the sort “pre-rebuttal” procedure Ford advocates is the
avoidance of confusion. It would likely be very difficult for jurors to evaluate Kennett’s
criticism of Pearson and Dr. Toomey’s testimony, if they were forced to hear that
criticism before knowing what Pearson and Dr. Toomey’s testimony actually was. Thus,
allowing Kennett’s rebuttal facilitated a more linear inquiry, and in this court’s view, a
more effective procedure for determining the truth.
Therefore, the court finds that is was not error to allow Kennett’s rebuttal.
Evidence of Suicide
Ford next argues that the evidence of Wickersham’s suicide was unfairly
prejudicial. This argument is based on Ford’s argument that it cannot be held liable for
Wickersham’s wrongful death because Wickersham’s suicide operates as an intervening
act that breaks the chain of causation. ECF No. 132 at 25–26. Ford contends that, if the
court agrees to grant its motion for judgment as a matter of law on plaintiff’s wrongful
death claims, then it is at least entitled to a new trial on the survival claims because of the
prejudicial effect of the suicide evidence. Of course, the court does not believe Ford is
entitled to judgment as a matter of law on plaintiff’s wrongful death claims for the
reasons noted in part III.A.2. and more fully discussed in the court’s order denying Ford’s
motion for summary judgment. ECF No. 65. Therefore, Ford is not entitled to a new
trial on the survival claims.
Instruction on Proximate Cause and Suicide
Ford reiterates its disagreement with the standard used to judge its liability for
plaintiff’s wrongful death claims. Ford argues that Wickersham’s suicide, as a matter of
law, broke the causal chain between Ford’s conduct and his death. ECF No. 132 at 27.
Even if there is an exception to this rule, Ford contends that it requires a showing of
“insanity.” Id. Because the court’s jury instructions utilized the “uncontrollable
impulse” standard outlined in its order denying Ford’s motion for summary judgment,
Ford argues that those instructions were in error. Again, the court stands by its adoption
of the “uncontrollable impulse” standard and refers to the analysis outlined in the
summary judgment order. ECF No. 65.
Instruction on Pre-existing Condition
Ford last argues that the court erred in instructing the jury as to the aggravation of
a preexisting condition. ECF No. 132 at 28–30. The court instructed the jury as follows:
When a plaintiff’s pre-existing physical or mental condition is aggravated
or activated by a subsequent act, the defendant is liable to the extent that his
wrongful act proximately and naturally aggravated or activated plaintiff’s
preexisting condition. The plaintiff can recover for pre-existing injuries
only to the extent they were aggravated by the defendant’s actions.
ECF No. 132-2. Ford objects to this charge on two grounds: (1) it dids not specify
which preexisting condition it was referring to, inviting the jury to “speculate
impermissibly,” and (2) it allowed the jury find Ford liable for Wickersham’s suicide
without proving Ford proximately caused Wickersham’s suicide. ECF No. 132 at 28–30.
The court is somewhat confused by Ford’s first objection. There were a number
of pre-existing conditions at issue in this case—Wickersham’s history of vision problems,
bi-polar disorder, depression, suicidal ideation, etc. To the extent there was evidence that
the accident aggravated any of these conditions, it was appropriate for consideration by
the jury. Put differently, the instruction was intended to be generally applicable to
whatever pre-existing conditions the jury found evidence to apply it to. The court does
not regard this as “impermissible speculation,” and Ford has not explained why it would
Ford next argues that the preexisting condition instruction conflicts with the
court’s instruction that Ford could be held liable for Wickersham’s suicide only if the
jury found that Wickersham’s suicide was the result of an “uncontrollable impulse” and
that “uncontrollable impulse was proximately caused by [Ford’s] actions.” Id. at 29. As
an initial matter, jury instructions should not be read in isolation. United States v.
Rahman, 83 F.3d 89, 92 (4th Cir. 1996) (“[I]n reviewing the propriety of jury
instructions, we do not view a single instruction in isolation; rather we consider whether
taken as a whole and in the context of the entire charge, the instructions accurately and
fairly state the controlling law.”); CSX Transp., Inc. v. Peirce, 974 F. Supp. 2d 927, 941
(N.D.W. Va. 2013) (“[J]ury instructions must be taken as a whole, and no single
instruction should be judged in isolation.”). Here, the court placed considerable emphasis
on the “uncontrollable impulse” requirement, going so far as to provide a separate, two-
In its reply, Ford appears to argue that this instruction should not have been
applied to Wickersham’s preexisting mental conditions, but does not explain why. ECF
No. 152 at 13. To the extent this argument is based on Ford’s disagreement with the
“uncontrollable impulse” standard, the court again refers to its order denying summary
judgment. ECF No. 65.
page instruction on when a defendant may be found liable for a person’s suicide. That
instruction reads, in full:
FORD CLAIMS THAT, EVEN IF IT IS LIABLE FOR JOHN
WICKERSHAM’S INJURIES, IT IS NOT LIABLE FOR JOHN
WICKERSHAM’S DEATH BECAUSE ITS ACTIONS DID NOT
PROXIMATELY CAUSE JOHN WICKERSHAM’S DEATH.
SPECIFICALLY, FORD CLAIMS THAT JOHN WICKERSHAM’S
SUICIDE WAS AN INTERVENING CAUSE OF HIS DEATH, FOR
WHICH FORD IS NOT LIABLE. AN INTERVENING CAUSE IS AN
INDEPENDENT EVENT WHICH INTERVENES BETWEEN THE
ORIGINAL WRONGFUL ACT OR OMISSION AND THE INJURY,
TURNS ASIDE THE NATURAL SEQUENCE OF EVENTS, AND
PRODUCES A RESULT WHICH WOULD NOT OTHERWISE HAVE
FOLLOWED AND WHICH COULD NOT HAVE BEEN REASONABLY
AS A GENERAL RULE, A PERSON’S SUICIDE WILL CONSTITUTE
AN INDEPENDENT AND INTERVENING EVENT WHICH BREAKS
THE LINE OF CAUSATION BETWEEN THE DEFENDANT’S
ACTIONS AND THE PERSON’S DEATH. HOWEVER, WHEN A
PERSON’S SUICIDE IS THE RESULT OF AN “UNCONTROLLABLE
IMPULSE” AND THE UNCONTROLLABLE IMPULSE WAS
PROXIMATELY CAUSED BY THE DEFENDANT’S ACTIONS, THE
DEFENDANT MAY BE LIABLE FOR THE PERSON’S SUICIDE. AN
UNCONTROLLABLE IMPULSE IS A FORCE ARISING WITHIN A
PERSON OF SUCH FORCE THAT THE PERSON COULD NOT
CONTROL THAT FORCE. PUT DIFFERENTLY, A PLAINTIFF MAY
RECOVER FOR THE WRONGFUL DEATH WHEN THE
DEFENDANT’S ACTIONS MADE THE PERSON INCAPABLE OF
CONTROLLING HIS OR HER OWN ACTIONS. THE CRUCIAL
QUESTION IS WHETHER MR. WICKERSHAM HAD THE ABILITY
TO CONTROL HIS ACTIONS. IN DETERMINING WHETHER HE
EXPERIENCED AN UNCONTROLLABLE IMPULSE, YOU MAY
CONSIDER (1) HIS MENTAL CONDITION PRIOR TO THE
ACCIDENT, (2) THE DURATION OF TIME BETWEEN THE
ACCIDENT AND SUICIDE, AND (3) THE INFLUENCE OTHER
FACTORS MAY HAVE HAD ON HIS ACTIONS IN COMMITTING
SUICIDE. HOWEVER, NONE OF THESE FACTORS ARE
DISPOSITIVE OF THE ISSUE. IT IS POSSIBLE FOR A PERSON TO
SUFFER FROM AN UNCONTROLLABLE IMPULSE, EVEN IF HE
UNDERSTANDS HE IS COMMITTING SUICIDE AND/OR INTENDS
TO COMMIT SUICIDE. IT IS ALSO POSSIBLE FOR A PERSON TO
SUFFER FROM AN UNCONTROLLABLE IMPULSE, EVEN IF HE
DOES NOT SUFFER FROM ANY FORM OF INSANITY, DELIRIUM,
PSYCHOSIS, OR OTHER SPECIFIC MENTAL DISORDER. IT IS
ALSO POSSIBLE FOR A PERSON TO SUFFER FROM AN
UNCONTROLLABLE IMPULSE, EVEN IF IT IS NOT A SUDDEN
IMPULSE AND THE PERSON MAKES THE DECISION TO COMMIT
SUICIDE OVER A LONG PERIOD OF TIME. THE ULTIMATE
QUESTION IS WHETHER MR. WICKERSHAM HAD THE ABILITY
TO CONTROL HIS ACTIONS.
PLAINTIFF BEARS THE BURDEN OF PROVING AN
UNCONTROLLABLE IMPULSE BY A PREPONDERANCE OF THE
ECF No. 132-2. In light of this instruction, the court finds that it was sufficiently clear to
the jury that they needed to find that Wickersham’s suicide was the result of an
uncontrollable impulse and that Ford’s actions were a proximate cause of that
uncontrollable impulse, before imposing any liability on Ford with respect to
Wickersham’s suicide. Moreover, the verdict form specifically asked whether plaintiff
proved, by a preponderance of the evidence, that Wickersham “suffered from an
uncontrollable impulse to commit suicide, and that [Ford’s] wrongful conduct was a
proximate cause of [Wickersham’s] uncontrollable impulse to commit suicide.” ECF No.
124. Thus, the verdict form shows that the jury did, in fact, make the very factual finding
that Ford fears they may have inadvertently circumvented.
Therefore, the court finds that the preexisting conditions instruction was not in
Motion to Alter or Amend the Judgment
Ford moves to alter or amend the judgment to account for the jury’s finding of
comparative fault. ECF No. 130. As noted above, the jury found that both Ford and
Wickersham’s actions were proximate causes of Wickersham’s injuries, attributing 70%
of the fault to Ford and 30% of the fault to Wickersham. The jury also found that
Wickersham’s total damages amounted to $4.65 million. Ford argues that this amount
must be reduced by 30% to reflect the jury’s finding with respect to Wickersham’s
comparative fault. Plaintiffs contend that the damages should not be reduced to account
for Wickersham’s comparative fault because comparative fault is not a defense to claims
for strict liability or breach of warranty.
Ford first argues that the court need not decide the issue on the merits because
plaintiff somehow waived the position she asserts now. ECF No. 130 at 4–5; ECF No.
150 at 4. Ford appears to suggest that, because plaintiff did not specifically discuss what
would happen if the jury found Ford liable for both negligence and non-negligence
claims, she implicitly acknowledged that all damages arising from such claims would be
reduced. Ford explains:
Plaintiff never argued, nor did the Court determine, that if the jury answered
‘yes’ to negligence, and also answered ‘yes’ to strict liability and/or breach
of warranty, then the Court would not give effect to the comparative-fault
finding. Rather, by her own admission, Plaintiff ‘requested the jury
apportion comparative negligence only if it found she proved the negligence
cause of action,’ which the jury did. Thus, Plaintiff should not now be heard
to argue what she was silent on previously—that a finding of strict liability
or breach of warranty would negate the jury’s comparative-fault finding.
ECF No. 150 at 4. However, it is clear that plaintiff has always maintained that
comparative fault is not a defense to strict liability or breach of warranty. T. 9:1885
(“[W]e don’t think comparative negligence applies to either [strict liability or breach of
warranty].”). It follows from this position that plaintiff’s damages should not be reduced
because the strict liability and breach of warranty claims are sufficient to support the
judgment, even if the negligence claim is not. Thus, the court is not convinced that
plaintiff has waived her arguments on this issue.
Turning to the merits question, the parties offer a variety of arguments as to
whether the court should apply comparative fault to plaintiff’s strict liability and breach
of warranty claims. Ford argues that, because the elements required to prove strict
liability are included in the elements of a negligence claim, failing to apply comparative
fault to strict liability claims would effectively remove the comparative fault defense
from products liability actions. ECF No. 150 at 7. Ford also argues that, even if a
product liability defendant could be found liable in negligence but not strict liability, the
rule would produce a curious result, allowing the more culpable, negligent defendants an
opportunity to reduce their liability while prohibiting the less culpable, strict-liability
defendant from doing the same.8 Id. Ford cites a number of courts that have recognized
comparative fault as a defense to strict liability claims. E.g., JCW Elecs., Inc. v. Garza,
257 S.W.3d 701, 707 (Tex. 2008); Whitehead v. Toyota Motor Corp., 897 S.W.2d 684,
691 (Tenn. 1995); Daly v. General Motors Corp., 575 P.2d 1162, 1166 (Cal. 1978).
Plaintiff maintains that comparative fault is not a defense to strict liability or
breach of warranty. ECF No. 145. Plaintiff cites to South Carolina caselaw, which has
held that “contributory negligence . . . has no application to an action based on breach of
warranty or liability for a defective product.” Wallace v. Owens-Illinois, Inc., 389 S.E.2d
155, 157–58 (S.C. Ct. App. 1989) (emphasis added). Plaintiff emphasizes that strict
The court notes that this argument is somewhat inconsistent with Ford’s
previous argument that—as a practical matter—a failure to apply comparative fault in
strict liability cases would eliminate the defense in the product liability context. The
underlying assumption of the latter argument is that whenever a product liability
defendant is liable in negligence, it would also be liable in strict liability. But if this is
true—and, under South Carolina law, it may well be—then no product liability
defendants would be receiving the benefit of the comparative fault doctrine, and—as a
practical matter—the incongruous result of allowing more culpable, negligence
defendants to reduce their liability while refusing to extend that benefit to less culpable,
strict-liability defendants would never occur.
liability and breach of warranty, unlike negligence, are not fault-based doctrines. ECF
No. 145 at 7–10.
In the time since this matter was argued, the Supreme Court of South Carolina
ruled on a closely-related issue in Donze v. General Motors, LLC, 800 S.E.2d 479 (S.C.
2017). Though Donze is distinguishable from this case in one significant way, the court
is convinced that the Donze decision offers the best window into how the Supreme Court
of South Carolina would approach the question at issue here.9
The Donze case, like this case, involved product liability claims against a vehicle
manufacturer, alleging that defects in the vehicle’s design made the vehicle unreasonably
unsafe in a crash. 800 S.E.2d at 480. The plaintiff in Donze was riding in a 1987
Chevrolet pickup truck, when the driver—who had been smoking synthetic marijuana—
pulled out in front of a Ford F-350 towing a horse-trailer.10 The Ford F-350 struck the
plaintiff’s truck, which burst into flames, causing the plaintiff to suffer severe burns. The
plaintiff then filed a “crashworthiness action” against GM, “alleging a defect in the
truck’s design—specifically, the placement of the gas tank outside of the truck's frame—
caused the fire, and seeking damages only for his enhanced burn injuries.” Id. Thus, the
Donze plaintiff sought only those damages that could be attributed to the manufacturer’s
failure to design a vehicle that would be safe in a foreseeable collision, not the damages
that he would have suffered in such a collision, regardless of the vehicle’s design. This is
what characterized Donze as a crashworthiness case.
Though the court has considered the parties’ pre-Donze arguments, it finds them
The Donze court assumed, for the sake of argument, that the driver’s
negligence could be imparted to the plaintiff.
The District Court for the District of South Carolina certified the following
question in Donze to the Supreme Court of South Carolina:11
Does comparative negligence12 in causing an accident apply in a
crashworthiness case when the plaintiff alleges claims of strict liability and
breach of warranty and is seeking damages related only to the plaintiff’s
Id. The court answered that question in the negative. Id. at 480–85. While the Donze
court’s analysis provides insight on how to decide the issue presented in this case, it is
important to recognize that Donze is not directly on point. Here, as in Donze, plaintiff is
seeking damages based on defects that made the vehicle unreasonably dangerous in the
event of a crash. Thus, this case is—technically speaking—a crashworthiness case. But
here, unlike in Donze, Wickersham’s negligence was not a partial cause the crash, it was
a partial cause of the enhanced injuries that were also caused by the defective RCM. Put
differently, this case is distinguishable from Donze on the fact that Wickersham’s
negligence had the same type of causal relationship with his injuries as the defective
The Donze court made clear that its holding did not extent to such facts in
footnote 4 of the opinion, which stated:
Our ruling today is limited to the certified questions before us which
concern only the applicability of comparative negligence to a plaintiff in
causing the collision in a crashworthiness case. We note, as did the district
court in Jimenez I, that “[c]omparative negligence related to the [defective
The district court also certified the question of whether “South Carolina’s
public policy bar[s] impaired drivers from recovering damages in a crashworthiness case
when the plaintiff alleges claims of strict liability and breach of warranty.” Donze, 800
S.E.2d at 480. This question does not bear on the instant matter.
The Donze court used the term “comparative negligence.” This court uses the
term “comparative fault,” when possible. However, the court regards the terms as
component] itself—tying [a door] shut for example—could still be a
defense, if a factual basis existed . . . .”
Id. at 485 n. 4 (alterations in original) (quoting Jimenez v. Chrysler Corp., 74 F. Supp. 2d
548, 566 (D.S.C. 1999)). For context, Jimenez I was a crashworthiness case about a
defective door latch that allowed a passenger to fly out of the vehicle during a crash. 74
F. Supp. 2d 548. Thus, the Donze footnote is targeted at the exact situation presented in
this case. The first question, then, is whether this footnote conclusively recognizes that
comparative fault would apply under such facts, or if it was simply meant to hold that
The court is convinced of the latter position. As an initial matter, the footnote
addresses matters that are expressly outside the scope of the certified question. The
entire point of the footnote was to acknowledge a set of facts that fell outside of the
controversy at issue. It would be odd to find that the Supreme Court of South Carolina
intended to conclusively answer questions that it recognized fell outside the scope of its
holding. Moreover, much of the reasoning in Donze could be extended beyond the
factual parameters of its holding. The court recognized that “both strict liability and
breach of warranty are statutory constructs as are the available defenses to these causes of
action,” and reasoned that the General Assembly’s failure to amend the statutory scheme
to recognize comparative fault as a defense to either cause of action was indicative of the
legislature’s intent on the issue. Donze, 800 S.E.2d at 485 (citing S.C. Code §§ 15-73-10,
15-73-20, 36-2-314, & 36-2-711). The court also observed that applying the defense of
“comparative negligence in crashworthiness actions brought under strict liability and
breach of warranty theories would conflate those two distinct doctrines with ordinary
negligence,” and cited the Supreme Court of South Dakota’s observation in Smith v.
Smith, 278 N.W.2d 155, 160 (S.D. 1979)—which, notably, was not a crashworthiness
case—that “it would be inconsistent to hold that the user’s negligence is material when
the seller’s is not.” Donze, 800 S.E.2d at 485 (internal quotation marks omitted). Neither
of these rationales are limited to the context of the Donze case, or even to the context of
crashworthiness cases, generally. Thus, the court is convinced that it is best to read
Donze’s statement that “[c]omparative negligence related to the [defective component]
itself . . . could still be a defense,” id. at 485 n. 4 (emphasis added), as a recognition of
the limited scope of the question presented in that case, not an attempt to forecast the
court’s view of hypothetical facts.
For the same reasons, the court is also convinced that, if the Supreme Court of
South Carolina were faced with the question presented here and alluded to in footnote 4
of the Donze decision, it would ultimately decide that comparative fault is not a defense
to strict liability and breach of warranty claims in a crashworthiness action, even when
the user was negligent in his use of the defective component. As outlined above, various
aspects of the court’s reasoning would necessarily extend to this factual context.
Certainly, there are other portions of the Donze decision that would not apply here—
namely, the court’s adoption of the holding in Jimenez I, that a plaintiff’s negligence in
causing the crash is “entirely irrelevant” in a crashworthiness case. Id. But the limited
scope of this reasoning does nothing to undermine the application of Donze’s other
rationales to this case. The fact remains that strict liability and breach of warranty claims
are “statutory constructs,” and as the Donze court recognized, the General Assembly has
not added comparative fault as a defense under either statutory scheme. Id. at 485.
Similarly, it would be just as “inconsistent” in this case to look to the plaintiff’s fault,
while ignoring the manufacturer’s fault, as it would in any other. Thus, the court
concludes that the Supreme Court of South Carolina would not recognize comparative
fault as a defense to strict liability or breach of warranty.
Therefore, Ford’s motion to alter or amend the judgment must be denied.
For the foregoing reasons, the court DENIES Ford’s motions.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
August 30, 2017
Charleston, South Carolina
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